United States District Court, N.D. Ohio, Western Division
OPINION AND ORDER
A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE.
Yahya Farooq Mohammad ("Farooq") has moved for a
pretrial evidentiary hearing on the co-conspirator statements
that the Government intends to present against him. (Mot. at
1 [ECF No. 82].) Alternatively, Farooq requests a formal
written proffer by the Government that would permit the Court
to determine, preliminarily, and prior to the impaneling of
the jury or the swearing of the first witness, the
admissibility of the co-conspirator statements.
(Id.) The Government opposed Farooq's Motion
because, when it was filed on May 9, 2016, the Government
considered it to be premature. (Resp. at 2 [ECF No. 101].)
The Government proposed that the Court deny the Motion
without prejudice and direct Farooq to raise the issue at a
later date, closer to trial. (Id. at 2-3.)
and his co-Defendants, Ibrahim Zubair Mohammad, Sultane Roome
Salim, and Asif Ahmed Salim, were indicted on September 30,
2015, and charged with (Count 1) conspiracy to provide and
conceal material support to terrorists, in violation of 18
U.S.C. § 2339A; (Count 2) providing material support to
terrorists, in violation of 18 U.S.C. § 2339A; (Count 3)
conspiracy to commit bank fraud, in violation of 18 U.S.C.
§ 1349 (brought against Farooq and Ibrahim only); and
(Count 4) conspiracy to obstruct justice, in violation of 18
U.S.C. § 1512(k). (Indictment at 12-72 [ECF No. 1].)
Government accuses Defendants of conspiring to provide, and
actually providing, funds and other material support to Anwar
al-Awlaki for the preparation and execution of terrorist
attacks and killings. (See Indictment at 12, 68.)
The Government contends that Defendants conspired to obstruct
its investigation into their illicit fundraising by making
false statements to the FBI and destroying or concealing
records. (Id. at 65-67, 71-72.) And as to Farooq and
Ibrahim, the Government additionally alleges that they
conspired to raise money for al-Awlaki through various
fraudulent credit card and PayPal transactions. (Id.
will be tried separately from his co-Defendants. He faces
trial on the charges listed above and on separate charges
relating to his alleged plot to hire a hitman to murder
United States District Judge Jack Zouhary. Farooq's
trial is scheduled to begin on July 10, 2017. With trial just
over a month away, Farooq's Motion regarding the
admissibility of co-conspirator statements is now ripe for
Federal Rule of Evidence 801(d)(2)(E), a statement of a
co-conspirator made during the course and in furtherance of
the conspiracy is not considered hearsay. Fed.R.Evid.
801(d)(2)(E); United States v. Emuegbunam, 268 F.3d
377, 395 (6th Cir. 2001). To admit a coconspirator statement
under Rule 801(d)(2)(E), a district court must find by a
preponderance of the evidence that "(1) the conspiracy
existed; (2) the defendant was a member of the conspiracy;
and (3) the co-conspirator made the proffered statements in
furtherance of the conspiracy." United States v.
Warman, 578 F.3d 320, 335 (6th Cir. 2009); see
Emuegbunam, 268 F.3d at 395.
district court must rind that a co-conspirator's
statements meet the requirements of Rule 801(d)(2)(E) before
admitting those out-of-court statements. Fed.R.Evid. 104(a);
United States v. Childs, 539 F.3d 552, 559 (6th Cir.
2008). And in making this preliminary determination-also
known as an Enright finding-courts in the Sixth
Circuit have at least three options. See Warman, 578
F.3d at 335; United States v. Vinson, 606 F.2d 149,
152-53 (6th Cir. 1979); see also United States v.
Enright, 579 F.2d 980, 986-87 (6th Cir. 1978)
(concluding that a judge must make the preliminary
determination regarding the existence of the conspiracy and
the defendant's participation in it).
acceptable method is the so-called 'mini-hearing' in
which the court, without a jury, hears the government's
proof of conspiracy and makes the preliminary
Enright finding." Vinson, 606 F.2d at
152 (emphasis added). If, through the mini-hearing, the Court
finds the coconspirator statements to be admissible, the
Government can then present its case, co-conspirator
statements included, to the jury. Id.
the second method, the Government must establish the
admissibility of the coconspirator statements through the
presentation at trial of its non-hearsay evidence of the
conspiracy. Vinson, 606 F.2d at 152. If, after
considering the non-hearsay evidence, the court finds that
the co-conspirator statements are admissible, the court will
permit the Government to introduce the challenged statements.
a third option, a district court can admit the co-conspirator
statements subject to the Government's later
demonstration of their admissibility. Vinson, 606
F.2d at 153. If, at the conclusion of the Government's
case-in-chief, the court finds that the Government has
established the admissibility of the co-conspirator
statements, the court should overrule the defendant's
hearsay objection and allow the jury to consider all of the
Government's evidence, co-conspirator statements
included. Id. If the Government fails to establish
the co-coconspirator statements' admissibility, the court
must declare a mistrial or give a cautionary jury instruction
regarding the co-conspirator hearsay statements. Id.
Court finds the second method most appropriate for this case.
This method avoids the burden of holding a mini-trial.
See Vinson, 606 F.2d at 152 (stating that the
mini-trial procedure "has been criticized as burdensome,
time-consuming, and uneconomic"). This method also
insulates against mistrial given that die co-conspirator
statements are not presented to the jury until after the
Court has made the preliminary admissibility determination.
See Id. at 152-53 (explaining that the second method
of making an Enright finding "avoids 'the
danger... of injecting the record witii inadmissible hearsay
in anticipation of proof of a conspiracy which never
materializes'" (quoting United States v.
Macklin, 573 F.2d 1046, 1049 n.3 (8th Cir. 1978))).
Motion [ECF No. 82] is, thus, GRANTED IN PART and DENIED IN
PART. The Court will not hold a pretrial evidentiary hearing
as Farooq requests. Nor will the Court direct die Government
to file a pretrial written proffer. Instead, die Government
must attempt to establish die admissibility of die
co-conspirator statements at trial through non-hearsay
evidence of die alleged conspiracy. If, based on diis
non-hearsay evidence, die Court concludes that the
co-conspirator statements are admissible under Evidence Rule
801(d)(2)(E), the Government will then be permitted to
introduce die co-conspirator statements to die jury.